Legal reforms where to start?

2018-02-06T23:57:02+05:00 Dr Farid A Malik

There are all kinds of sayings in law depending which side you are on. ‘Justice delayed is justice denied’ and ‘Justice hurried is justice buried’ being most popular. Coming from a family of litigants I was exposed to our legal system quite early. On the death of my father in 1991, I inherited about twenty of his court cases. I was lucky that his lawyer was the brilliant legal mind Mian Nisar Ahmed father of the current Chief Justice of Pakistan (CJP) Mian Saqib Nisar. In our very first official meeting in his Mozang Road office he explained our legal system in brief words. ‘Courts do not deliver justice, they provide leverage, instead of seeking glory one must settle’. Unfortunately my father did not agree with this approach. He believed in a black and white world which no longer existed as a result his cases were un-ending. I decided to follow Mian Sahib’s advice. He called Haji Sahib, his “Munshi, and tasked him to follow up the cases at all levels for expeditious disposal.

Haji Sahib had a 1964 model Vespa Scooter which needed tender care and so did his contacts in the Registrar’s office. Due to our combined efforts the case that was stalled for about two decades was finally heard. Now Mian Sahib took over, he told the Judge that the old man had perished seeking justice and now his son was here. It was indeed a very gloomy picture. It was a case of rent default in which we sought possession of the property. The judge asked the other party what did they want, the answer was time. He said OK how much, five years was the reply, and he said no I can give you one year. On this I intervened requesting the judge that I needed the property and could not wait.

Mian Sahib kicked me in the leg and asked me to remain silent which I did. With mutual consent the court issued orders for vacant possession within one year. While coming out of the building I still remember the words of one of the most brilliant legal minds of our times. He said ‘Balli your father would not have agreed on giving time to the other party, the case would have been decided in our favour while the other party would have gone into appeal to the Supreme Court and your son would have been standing there after two decades’. Victory indeed but without possession, now you will have both.

Our legal system suffers from serious structural problems. The delivery mechanisms are seriously flawed. With Saqib Nisar as CJP and Mansoor Ali Shah and CJ of LHC (now SCJ), reforms can be implemented. 2018 should be declared a year of zero backlog, in other words all pending cases should be settled to make the system current. Shortage of judges and frivolous litigation has been identified as major impediments. I think logistics / records / management should also be added to the list.

Justice Shah has suggested hiring 10,000 Civil Judges which is not a bad idea. The system can be divided into old time barred and current cases. Existing judges should bear current cases while others could be handled by the newly appointed judges on contract basis.

Expeditious disposal of cases will itself result in control of frivolous litigation as they will not be able to gain time. The sooner the files will be opened the sooner the solutions will emerge. Tracking and then opening of files on a regular basis is required otherwise parasites of all kind take over, some hidden within the system while some outside with vested interests.

On November 01, 2005, I received a letter from Dr. Faqir Hussain Registrar of Supreme Court of Pakistan requesting me to start ISO-9001- 2001 Certification of the Court. An office order No. DR(A) 2005-SCA was also issued, 39 officers of the court were designated to start training, writing the job description of CJP was not easy as he has to both manage and dispense justice. The highest court of the country was in the process of building a customer friendly Quality Management System (QMS) when the lawyers movement started. While the judiciary has been liberated the legal system remains in shambles. It is perhaps fate that I met Saqib Nisar on the day of his restoration as judge of the LHC. We both stopped at the Alhamra traffic signal on the Mall. I wished him well when he told me that he was going for the oath.

As a lawyer and a judge Mian Nisar is revered till today as a brilliant son of Lahore who obtained justice for his clients. His son Saqib Nisar (Dec 2016 to Jan 2019) can go down in history amongst the best of the best if he is able to reform the judicial system of the country. Pakistan has produced brilliant Chief justices like A.R. Cornelius (1960 – 68) and Hamood-ur-Rehman (1968 – 75), it is time for another reformer to put the system back on track. He is lucky to have a very able team. Justice Asif Khosa (Jan 2019 to Feb 2020) and Justice Gulzar Ahmed are next in line. Justice Azmat Saeed is not too far behind, all outstanding jurists.

The pieces have to be put together, starting from the appointment of judges and improvement of delivery systems the crusade can be started. Justice has been buried far too long in the Islamic Republic of Pakistan. Let us resurrect it before people lose faith in the system as was seen on January 31, 2018 at the Session Court Lahore where vigilante justice took over. Civilized societies are governed by law in the absence of which the state collapses.

As students we debated about the future of Pakistan and forcefully presented our point of view now it is time to carve this future for our coming generations. Together let us put the motherland back on track. Judges don’t need to talk. They speak through their judgments, in addition as Chief Law Manager CJP can also reform the legal framework of the country. I am sure he will make his old man Mian Nisar Ahmed of Bhati Gate proud.

 

The author is a freelance journalist.

fmaliks@hotmail.com

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